• Joe McCoy

“IT WAS AN ACCIDENT! IT WAS AN ACCIDENT,” my 6-year-old daughter yells as she trails her 4-year-old sister into the living room—the 4-year-old is crying in agony: “It was NOT an accident, Paisley: you hurt me—look at the bump on my head!” My 4-year-old, Julia, turns her attention to me, the Judge: “Daddy, Paisley hurt me. And it was NOT an accident!”

After determining that Julia’s condition is not life threatening, my mind wanders to our civil justice system….

My 6-year-old—the cause of the injury here—has realized an important distinction in our human concept of fairness. She’s emphatic that her sister’s injury was simply an accident—not intentional. Therefore, she implies, it should be forgiven and forgotten. My 4-year-old apparently concedes the importance of this distinction—she retorts that this was most assuredly NOT an accident.

We forgive accidents. Accidents happen. We’re all human after all. But in my experience helping people who have been seriously injured, I’ve learned that there is usually a reason an “accident” happens. Very rarely does a driver slam into the back of another car if the driver was following the rules of the road. Often I discover that the driver was texting, was sleep deprived after a long night of partying, or was simply not looking at the road in front of him: that’s an important place to look while driving.

Was it an accident? Sure—in the sense that an injury was not intended. But the accident stemmed from the violation of very basic safety rules. The driver was not as careful as he should have been. And there are serious consequences for violating safety rules. We depend on people and companies following safety rules to keep all of us safe. Accident or not, the crash can change the trajectory of lives.

Turning my attention back to my screaming children who are waiting for me to dole out justice, I investigate:

“What happened?” I ask.

“Well, I was playing with the whiffle ball bat, and Julia’s head got in the way.” My 6-year-old explains.

“It was MY turn to play with the bat, and you hit me!” My 4-year-old protests.

“Paisley: we NEVER swing the bat in the house—especially when anyone else is close to us.” There’s the safety rule violation, I think to myself. I also have some questions about the intentionality of this incident, but I’ll leave that alone for now. “Julia, let’s go get an ice pack, and the bat is going up for the day.”

“NOOOO!” Both children yell in unison.

Our civil justice system treats accidents differently than intentional acts, but our system is designed to limit future accidents by holding safety-rule violators accountable. That doesn’t always mean punishment, but it does mean compensation for the injured party. What type of justice would it be if I told Julia, “Well, it was just an accident, so no need for an ice pack.”? How can our system prevent this from happening again and again?

If you have questions about parenting, DO NOT contact me. But if you or a loved one have been injured and have questions about how our justice system handles your situation, I hope you’ll reach out.

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A car crash can be one of the more frightening experiences of a person’s life. Even in the fortunate situation when no one is injured, the crash disrupts life. I get some phone calls from people who have been in a crash with no injuries, but they have questions about their car. While I typically don’t get involved in property damage only claims, I try to provide helpful advice to make sure that people are aware of their rights in the situation. Here are some of the common questions and answers:

Question: I owe $20,000 on the loan for my car. The insurance company is offering $16,000 for the car. Won’t the insurance company agree to pay off my loan?

Answer: Unfortunately, no. The insurance company doesn’t care about the amount of the loan. The Ohio Administrative Code permits the insurance company to provide either the market value of the vehicle (derived the moment before the crash), or a replacement vehicle of like kind and quality. Sometimes the loan owed on the car is higher than the market value of the car—the car is upside down financially. While Ohio law says the person not at fault for the crash should be put back in the same position he or she was in before the crash, I’ve never encountered an insurance company willing to factor in the loan issue in evaluating the property damage. Gap insurance is something to consider when you’re purchasing a car—if it looks like the amount of the loan will be more than the actual market value of the car.

Question: How does the insurance company determine the market value of the car?

Answer: The Ohio Administrative Code permits the insurance company a few options in offering a cash value settlement for a car determined to be a total loss:

· The average cost of two or more comparable cars in the general area if those cars are currently available, or were available within 90 days before the crash; or

· The average of two or more quotations obtained by the insurance company from two or more licensed dealers in the area; or

· The cost as determined from a generally recognized electronic database.

In my experience, most insurance companies use the last option (a generally recognized electronic database). But they don’t use Blue Book or NADA—they use CCC. Why? Because CCC comes up with fairly low values for your car. But the Ohio Administrative Code allows the insurance company to use CCC to determine the value as long as they use it consistently (why wouldn’t they?).

Question: Do I have to accept the value the CCC report places on my car?

Answer: No. You should request the valuation documents the insurance company used to come up with the settlement offer. Make sure that the CCC report used truly comparable vehicles, and that the information in the report is accurate. Sometimes your car’s worth can be increased if it had special features that were not factored into the initial report.

You can also reject the offer and file a lawsuit against the at fault driver, or your own insurance company in certain situations. At a trial, the question will be the fair market value of the car the moment before the crash. The CCC report is not the best evidence of the market value of the car that was totaled. While there are costs and expenses associated with litigation, litigation and trial may be the best option in some situations. And you can do this with or without a lawyer.

Question: Should I go through my insurance company or the at fault party’s insurance company for the property damage claim?

Answer: While this answer is somewhat fact dependent, I generally recommend pursuing the claim with your own insurance company first. My reasoning is that you typically have more rights with your own insurance company because of the contract you have with them, the premiums you’ve paid, and the insurance company’s desire to keep you as a customer. Your insurance company is your insurer, and you are their insured. They have duties to you that are covered by your contract. These duties include providing rental transportation while you don’t have a car and acting in good faith in handling your claim. You should review your insurance policy to understand your contractual rights, and remember that Ohio law imposes a duty of good faith and fair dealing with all contracts—insurance policies included.

If negotiations with your own insurance company stall or fail, you have the option of submitting the property damage claim with the at fault party’s insurance company. If you’re able to resolve the property damage claim with your own insurance company, the insurance company will pursue reimbursement from the at fault party’s insurance company and should recover any deductible you owe or owed under your policy.

Question: Any other rights I should know about?

Answer: Yes; if you purchase a replacement car within 30 days after receiving a cash value settlement for the total loss of your car, the insurance company must reimburse you for the sale tax on the purchase (up to the amount that would have been payable for sales tax on the totaled car).

You can also review Ohio Administrative Code 3901-1-54 (Unfair property / casualty claims settlement practices) for more information about the way the insurance company is required to handle total loss claims.

Getting in a car crash is no fun, even when everyone walks away with no injuries. If your car has been totaled in a crash, I hope these questions and answers help you navigate some of the complexities of the total loss settlement.

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I’m spending most of my weekends getting ready for a civil jury trial scheduled to take place in April 2021. It will be my first trial post-Covid, and I’m honored and privileged to represent and advocate for my injured client against a company whose insurance company has been unwilling to offer my client a fair settlement.

As I prepare for trial, my appreciation for our American civil justice system grows. In about a month, eight citizens will be chosen to decide a dispute. These citizens will undoubtedly come from diverse backgrounds, differing educational levels, and could be male, female, black, white, 20 years old, or 90 years old. The common thread uniting these people will be that they have no stake in the outcome, they don’t know any of the parties, and their decision will be based on the evidence presented to them over the two-day trial. My heart beats faster just thinking about this….

What a beautiful thing? With all the different political and philosophical views that make up our society, I’m returning to a basic question—perhaps a foundational question of our civil justice system:

When a person is injured by another person or company’s wrongdoing, who should pay for the harm?

I can think of three options:

1. The injured party;

2. Society at large; or

3. The wrongdoer.

What do you think? I’ll wait….

My gut tells me you lean option 3—I sure do. And I believe that most Americans say option 3. I’m certainly confident the eight jurors who are chosen for the upcoming trial will say option 3. Let’s dissect the options:

1. The injured party herself should pay for the harm

I can’t imagine too many people hold this view—certainly not anyone who has been seriously injured by another’s carelessness. It just doesn’t jive with our concept of justice—of right and wrong. When someone does something wrong, there are consequences. This concept goes back to ancient times, and while our methods of dolling out consequences have evolved, not leaving the innocent victim out to dry is as old as Moses—I think he was pretty old….

2. Society at large should pay for the harm

Socialism? Perhaps we’ve crept closer to this sort of system in some ways through programs like Medicaid, Medicare, Social Security, or even Workers Compensation. If we go with this option, however, we’ve fundamentally strayed from the American concept of justice. This country was founded on principals of accountability, justice, and fairness. While the country hasn’t always been true to those principals (see slavery, Civil Rights movement, women not being able to vote, etc.), that doesn’t mean that our founders didn’t get some things right: one of those things, in my opinion, was the concept that public taxes shouldn’t be used to bail out people or companies that do something wrong and injure someone else.

3. The wrongdoer should pay for the harm

Here it is. This is American civil justice. This is our tort system. The wrongdoer is responsible for making the injured victim whole. I’m hopeful that whether you’re a republican, democrat, independent, or a proponent of some other political party, you choose option 3.

If you’re still with me, preparing for this trial brings up another question:

Who should decide how much the wrongdoer should pay the injured victim?

For simplicity’s sake, here are three options:

1. The wrongdoer;

2. Bureaucrats; or

3. Everyday citizens unconnected with the underlying controversy.

You see where I’m going with this? I resoundingly reject options 1 and 2. The person who caused the injury can’t be the one to decide the amount of harm (unless it is in conjunction with the injured person—this is called a settlement), nor do I want elected officials deciding how much a person’s life is worth. I want this decision in the hands of everyday people—people that bring their humanity, every day experiences, and common sense with them to the court house. And our civil justice system agrees. The 7th amendment provides as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Ohio’s Constitution also protects the right to a jury trial, explaining that the “right of trial by jury shall be INVIOLATE.” Inviolate means “free or safe from injury or violation.” I looked it up.

This is beautiful…music to my ears. How fantastic is it that our civil justice system puts the pauper on an equal footing as the corporate CEO? How? The jury trial. Giving the power to everyday people to decide when someone did something wrong, and what the remedy should be, protects the integrity of our justice system. The jury trial is the great equalizer.

After this little thought exercise, I’ll continue to prepare for trial—with even greater motivation. I’m honored to present my client’s case to a jury of her peers, and I trust that they will bring back a verdict that is fair, impartial, and does honor to our civil justice system.

If you have questions about anything in this post, give me a call. I’m happy to listen, and I enjoy discussing the merits of our American civil justice system.

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